Cotto v. City Of New York, et al

Filing 51

OPINION re: (28 in 1:16-cv-00226-RWS) MOTION to Dismiss filed by City Of New York. The First Amended Complaints filed by Plaintiffs Cottoand Arroyo are dismissed with prejudice. It is so ordered. (Signed by Judge Robert W. Sweet on 8/11/2017) (mml)

UN ITE D STATE S DIS TRICT COURT
SOU THERN DISTRIC T OF NEW YORK

------------- ---------------------------x
IRIS COTTO ,
Pl a i nt i ff ,
15 Civ . 9 1 23

(RWS)

- aga i nst CITY OF NEW YORK , et al .,
Defendants .

------ --------- - ----------------------- -x
JOS EPH ARROYO ,
Pla i n t iff ,
16 Civ . 226

(RWS)

- aga i nst CITY OF NEW YORK , et al .,
Defendants .

-------- --------------------------------x
A P P E A R A N C E S:
Attorney for Pla i ntiffs
MARTINDALE & ASSOCIATES , PLLC
380 Lexingt on Avenue , 1 7th Floo r
New York , NY 10168
By :
Conway C . Martindale , Esq.

Attorney for Defenda n t
NEW YORK CITY LAW DEPARTMENT
100 Chu rch St r eet
New York , NY 100007
By :
Suzanne E. Aribakan , Esq .

0 P I N I 0 N

'.

'.

Sweet, D.J.

w

Defendants the City of New York (the "City") and
Police Officer David J. Coote ("P. O. Coote")
" Defendants")

1

(collectively , the

have moved to dismiss the Amended Complaints of

Iris Cotto ("Cotto " or "Plaintiff" ) and Joseph Arroyo ("Arroyo")
(collectively, the "Plaintiffs" ) pursuant to Rule 12(b) (6) of
the Federal Rules of Civil Procedure or, alternatively, Rule 56.
Plaintiffs allege false arrest (Count 1), false imprisonment
(Count 2) , and excessive force
U.S.C.

§

(Count 3), all in violation of 42

1983 ; assault and battery (Count 4); malicious

prosecution in violation of 42 U.S.C.

§

1 983 (Count 5);

intentional infliction of emotional distress
conspiracy in violation of 42 U.S.C.

§

(Count 6) ;

1983 (Count 7); and

negligence (Count 8) . Based upon the facts and conclusions set
forth below, the motions are granted and the Amended Complaints
are dismissed with prejudice.

1

The First Amended Complaints in both of the above-named actions
only name the Ci ty and P.O. Coote as defendants.
1

'.

I.

Prior Proceedings

Cotto instituted her action, No. 15 Ci v . 9123, on
November 1 9 , 2015 and filed her First Amended Complain t on
August 1 5 , 2016 . Her case was assigned to this Court. Arroyo
in stituted his action, No . 16 Ci v . 226, on January 12, 2016 and
filed his First Amended Complaint on October 5 , 2016 . Arroyo's
case was initially assigned to the Hono rable Edga rdo Ramos and
reassigned to this Court on June 1 , 20 17.

The motion to dismiss in Arroyo's case was filed on
January 17, 2017 and marked fully submitted on April 14, 2017 .
The motion to dismiss in Cotto 's case was filed on November 21 ,
2016 and was heard on May 31 , 20 1 7 , on which date it was marked
fully submitted.

Th e Plaintiffs' Amended Complaints con tain the same
e i ght cla i ms against the same two Defendants . They provide an
ide ntical set of facts, wi th pronouns changed , involving a
police off i cer 's treatment of Plaintiffs during and after a
traffic stop and arrest occu rring o n April 28, 2013 . Both Cotto
and Arroyo are represented by Conway C . Martindale of The Legal
Ai d Society . Because the Court finds that these cases involve a

2

common question of law and fact , Fed . R . Civ . P . 42(a) , the
cases are hereby consolidated for purposes of deciding this
motion to dismiss. 2 Because both motions have already been fully
briefed , the motions to dismiss filed in both cases are
addressed in this opinion , with consideration given to the full
set of arguments submitted in support and in oppos ition.

II .

The Facts

The facts as set forth below are drawn from the two
Plaintiffs' First Amended Complaints ("FACs"). Because the
numbering and content is the same for the FACs, only one
cita ti on is provided to refer to th e contents of both FACs . The
facts are taken as true for purposes of the motion to dismiss .

On or about April 28 , 2013 , Arroyo met Cotto on East
187 t h Street in the Bronx, New York , and got in Cotto ' s car as
the passenger. FACs , Facts Sections ,

~~

1-4. Cotto drove toward

a lo ca l gas station, and when she reached the intersecti o n of
East Tr emont and Hughes Avenues in the Bronx , New York , she was
ordered to pull over by a police loud speaker. Id.

2

~~

5-8.

A previous order , see No . 15 Civ. 9123 , ECF No . 15, requires
co ns olidated discovery for the two cases.
3

.

'

Cotto was not aware of any violation or infraction of
any rule or regulation she had conunitted. Id.

~

9. Cotto was

about her wits, and had not had any beverage or substance which
would affect her perception or ability to manage her vehicle.
Id.

~

10. The vehic le was functioning in normal operational

capacity with no defects at the time of the incident.

Id.

~

11.

Cotto complied and pulled over as soon as it was safe.
Id.

~

12. Arroyo was then dragged out of the vehicle by multiple

police officers , being forcefully made to exit against his will.
Id.

~~

13-14. Cotto witnessed this scene. Id.

and Cotto were arrested.

Id.

~~

~

15. Both Arroyo

16-17. During the arrest , Arroyo

and Cotto sustained bodily injuries, with Arroyo sustaining a
black eye and back injuries and Cotto sustaining injury to her
leg, resulting in the need for use of a cane to walk.

Id.

~

18.

Arroyo ' s injury resulted from being thrown to the ground and
repeatedly beaten about the body and head for a period of time ,
and from being kicked by the police officer , who was wearing
boots. Id .

~~

19-21. Cotto ' s injury resulted from P.O. Coote

repeatedly slanuning the car door on her le g , from being maced
directly in her face, and from being punched wi th a closed fist.
Id.

4

..

Arroyo and Cotto were brought to the 4Sth Precinct and
then to Central Bookings. Id.

~

22. They both mentioned

repeatedly that they needed medical attention, and the extent of
their injuries were clear and evident ; however, no medical
attention was sought. Id.

~~

23 - 24. After being detained for two

days , Arroyo and Cotto were arraigned.

Id.

~

26 . Bail was not

set for Arroyo and he was released; bail for Cotto was set in
the amount of $2 , 000 , which she could not afford , and Cotto was
sent to Rikers Island.

Id.

~

27. All charges were ultimately

dismissed on the basis that the lab report on the alleged crack
cocaine found in the possession of Arroyo and Cotto during the
traffic stop came back negative, noting no trace of any
contraband . Id.

~~

28-29.

Arroyo and Cotto both have needed to attend regular
physical therapy sessions , have suffered emotional distress , and
have not regained the ability to walk normally.

III.

Id.

~~

30-32.

The Applicable Standards

The Rule 12(b) (6) standard requires that a complaint
plead sufficient facts to state a claim upon which relief can be

5

' '

granted . Ashcroft v. Iqbal, 556 U. S . 662 , 677 - 78

(2 009) ; Bell

Atl . Corp. v. Twombly , 550 U.S. 544, 570 (2007) . On a motion to

dismiss under Fed. R . Civ. P 12(b) (6) , all factual allegations
in the complaint are accepted as true, and all reasonable
inferences are drawn in the p l aintiff ' s favor.

Littlejohn v .

City of N . Y ., 795 F . 3d 297 , 306 (2d Cir. 20 1 5); Mills v. Polar
Molecular Corp ., 12 F.3d 11 70 , 1174 (2d Cir . 1993). However , " a

pla i ntiff ' s obligation to provide the grounds of his entitlement
to relief requires more than labels and conc l usions ." Twombly,
550 U.S . at 555 (quotation marks omitted). A complaint must
contain "sufficient factual matter, accepted as true , to ' state
a claim to relief that is plausible on its face.'" Iqbal,

556

U. S . at 663 (quoting Twombly , 550 U. S. at 570).

A claim is facial l y plausible when "the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.

(quoting Twombly , 550 U.S. at 556) . In

other words , the factual allegations must " possess enough heft
to show that the pleader is entitled to relief." Twombly , 550
U. S. at 557

(internal quotation marks omi tted).

6

' '

Additionally , while "a plaintiff may plead facts
alleged up on information and belief 'where the belief is based
on factual information that makes the inference of culpabili t y
plausible ,' such allegations must be ' accompanied by a statement
of the facts upon wh ich the be lief is founded.'" Munoz-Nagel v .
Guess , Inc ., No. 12-1312, 20 1 3 WL 1 809772 , at *3 (S . D.N . Y. Apr .
30 , 2013)
1 20

(quot ing Arista Records, LLC v . Doe 3 , 604 F.3d 110,

(2d Cir. 2010)) and Prin ce v. Madison Square Garden , 427 F.

Supp . 2d 372 , 384

(S .D.N.Y. 2006) ; see also Williams v .

Calderoni , No . 11-3020, 20 1 2 WL 69 1 832 , *7

(S .D.N.Y. Mar. 1 ,

2012) . The p l ead ings, however, "must contain something more than
. a statement of facts t hat merely creates a suspicion [of]
a legally cognizable right of action ." Twombly , 550 U. S . at 555
(quot ing 5 CHARLES ALAN WRIGHT
PROCEDURE

IV.

§

&

ARTHUR R . MILLER , FE DERAL PRACTICE AND

12 1 6 (3d ed. 2004)) .

The Motions to Dismiss the Amended Complaints Are Granted

For the reasons set forth below , the Amended
Compla int s are dismissed with prejudice.

7

'.

A.

The Federal Claims Against P.O. Coote Are Barred By
The Statue of Limitations

All claims against defendant P . O. Coote are barred by
the statute of l imi tat i ons . Section 1983 does no t provide for a
specific statute of limi tat i o n s f or persona l inj u ry act i ons
under state law . See Hogan v . Fischer , 738 F . 3d 509 , 517

(2d

Cir . 2013) ; Shomo v . City of New York , 579 F. 3d 176 , 181

(2d

Cir . 2009)

(same) . Under New York l aw , the statut e o f

limitations for personal injury claims is three years . See N. Y.
C . P . L . R . § 214(5) . " Section 1983 actions f i led in New York are
therefore s ubject to a three - year sta t ute of limitations ,"

Hogan , 738 F . 3d at 517 , t h at beg i ns to accrue " when the
plaint i ff knows or has reason to know of the harm ," Shomo , 579
F . 3d at 181

(internal quotation marks omitt ed). See Owens v .

Okure , 488 U. S . 235 , 251

(1 989) , aff ' g 816 F . 2d 45

(2d Cir.

1 987) . Since Plaintiffs allege their var i ous federal
const i tut i onal violat i ons as hav i ng occurred on or about Apri l
28 , 2013 , all c l aims accrued on or about that date ,

see

Singleton v. City of New York , 632 F . 2d 185 , 191 (2d Cir . 1980) ,
and consequently , t he th ree - year stat u te of l i mi tat i ons
applicable to a l l of those claims expired on or about April 28 ,
2016. Although Plaintiffs f iled the i r or i g i nal Complaints on
November 1 9 , 20 1 5 , wi th i n t he th r ee - year period , they each

8

listed "John Doe" as the officer defendant. They did not
identify P . O. Coote by name until they filed their First Amended
Complaints on August 13, 2016 and October 5, 2016, about three
and five months, respectively, after the lapse of the
limitations period.

"John Doe" pleadings typically "cannot be used to
circumvent statutes of limitations because replacing a

' John

Doe ' with a named party in effect constitutes a change in the
party sued.'" Hogan, 738 F.3d at 517

(quoting Aslanidis v . U. S .

Lines, Inc ., 7 F . 3d 1067, 1075 (2d Cir . 1993)). Substitutions of

a party ' s name for John Doe, therefore , "may only be
accomplished" if the amended pleading relates back to the date
of the original complaint under Federal Rule of Civil Pr o cedure
15(c). Aslanidis, 7 F . 3d at 1075; see also JCG v . Ercol e , No.
11-CV-6844, 2014 WL 1630815 , at *12 (S.D.N.Y . Apr . 24, 2014)
(same) , adopted by JCG v. Ercole , No . ll-CV-6844

(CM)

(JLC),

2014 WL 2769120 (S.D.N.Y . June 18 , 2014). Rule 15(c) contains
two subsections that are relevant here : Rule 15 (c) (1) (C) and
Rule 15(c)(l)(A). See Hogan , 738 F.3d at 517 .

9

'.

Plaintiffs' claims are untimely under Federal Rule of
Civil Procedure 15(c) (1) (C) . For an amended complaint adding a
new party to relate back under Rule 15 (c) (1) (C) :
(1) the claim must have arisen out of conduct set out
in the original pleading; (2) the party to be brought
in must have received such notice that it wi ll not be
prejudiced in maintaining its defense; (3) that party
should have known that, but for a mistake of identity,
the or iginal action would have been brought against
it; and (4) the second and third criteria are
fulfilled within 120 days of the filing of the
[timely] original comp laint[.]

Hogan,

738 F.3d at 517

(modificat i ons in origina l omitted)

(quoting Barrow v . Wethersfield Police Dep't,
69

66 F.3d 466, 468-

(2d Cir . 1995)). Here, Defendants do not dispute that the

claims in the Amended Comp laint arise out of the conduct
described in the original complaint. Instead, Defendants argue
that Plaintiffs cannot meet the third requirement f or relation
back because under Rule 15 (c) (1) (C) "the failure to identify
individual defendants when the plaintiff knows that such
defendants must be named cannot be characterized as a mistake."
Barrow,

66 F . 3d at 470 . In other words, "plaint iff[s' ] failure

to know the identities of the individual [they] wishe[d] to sue
is not a

'mista ke ' as to their identity .

disqualif [ying]

the plaintiff[s] from taking advantage of the doctrine." Barrett
v . City of Newburgh , No. 13-CV-4118

* 4 ( S . D. N. Y. Mar. 2 3, 201 7) .
10

(NSR), 2017 WL 1102672, at

..

Defendants are correct ; "l ack of knowledge of a John
Doe defendant ' s name does not constitute a
identity .'" Hogan , 738 F . 3d at 518

' mistake of

(citing Barrow, 66 F. 3d at

470) ; see also Ceara v. Deacon , 68 F. Supp. 3d 402 , 407
(S . D. N. Y. 2014)

(same) ; Vasconcellos v . City of New York , No . 12

CIV . 8445 CM , 2014 WL 496 1 441, at *7

(S . D.N . Y. Oct . 2 , 2014)

(concluding that the plaint i ff ' s claims did not relate back
under Fed. R . Civ. P . 15 (c) (1) (C) because the plaint i ff was
" ignorant " and not "mis t aken " about the John Doe defendants '
i dentit i es) ; Strada v . City of New York , No.
3490306 , at * 1 0 (E . D. N. Y. July 1 1 , 20 1 4)
explaining that "Barrow remains good l aw
[the]

[c] ourt from finding that [ the]

ll - CV - 5735 , 2014 W
L

(citing Hogan and
. and prec l udes

[p] laintiff ' s failure to

amend the [c]omplaint to name the individual officers was a
mistake contemplated by Rule 15(c)") . According l y , because
Plaint i ffs canno t satisfy the third requ i rement , their amended
pleadings cannot relate back under Rule 15 (c) (1) (C) . See Hogan ,
738 F . 3d at 518 .

Plaintiffs '

c l a i ms are a l so untime l y under Federal

Rule of Civil Procedure 15 (c) (1) (A). An amended pleading relates
back pursuant to 15 (c) (1) (A) when "the law that provides the
applicable statute of l i mitations allows relation back ." Fed . R .

11

' '

' '

Ci v . P. 15 (c) (1) (A) . In applying Rule 15 (c) (1) (A) , courts are
" to look at the entire body of limitations law that provides the
applicable statute of limitations." Hogan,
Because

§

738 F.3d at 518 .

1983 "derives its statute of limitations from state

law," the Court looks to New York State law.
applicable state law is
Rules

§

Id. Here , the

1024 of the New York Practice Law and

("CPLR" ) , which states:
A party who is ignorant, in whole or i n part , of the
name or identity of a person who may properly be made
a party, may proceed against such person as an unknown
party by designat ing so much of his name and identity
as i s known . If the name or remainder of the name
becomes known a ll subsequent proceedings shall be
taken under the true name and all pr i or proceedings
shall be deemed amended accordingly .

N. Y. C . P .L. R.
CPLR

§

§

1 024. As the Second Cir cu it has recently held ,

1 024 is in fact more forgiving in r elating back

complaints in the John Doe context. See Hogan,

738 F.3d at 518 .

Therefore, the Court must determine whether Plai ntiff s may take
advantage o f

§

1024. See Wilson v . City of New York , No . 03 - CV-

2495 , 2006 WL 2528468 , at *2

(S .D. N. Y. Aug. 31 , 2006)

(not i ng

that Rule 15(c) (1) directs courts to app l y either state or
federal law, whichever " affords a more forgiving principle of
relating back " )

(interna l quotation marks and citation omi t ted) .

12

''

''

As an initial matter , a plaintiff may not designate a
party as " John Doe " under § 1024 if he has actual knowledge of
the party ' s identity . See Deutsche Bank Nat . Trust Co . v .
Turner , 32 Misc . 3d 1202(A) , 934 N. Y. S.2d 33, No. 10 - CV- 41152 ,

2011 N. Y. Slip Op . 51153(U) , at *2

(Civ . Ct. Apr. 22 , 201 1 );

Maurro v . Lederman , 7 M sc. 3d 863 , 795 N. Y.S . 2d 867 , 870
i

Ct. 2005)

(Sup.

("An explicit prerequisite to the use of CPLR 1024 is

plaintiff's ignorance of the defendant ' s name.") . "If none of
the name is known , then a completely fictitious name may be
utilized . However , such a designation can only be made if the
designating party does not know all or part of the other party ' s
name ; otherwise the party must be designated to the extent that
his or her name is known. " First Fed . Savings & Loan Ass ' n of
Rochester v. Souto , 158 Misc. 2d 219 , 601 N.Y.S.2d 43 , 44

(Civ .

Ct . 1993) ; see also Turner , 2011 N. Y. Slip Op . 51 1 53(U) , at *2
(same). Here , Pla i ntiffs noted "Police Officer John Doe (48 th
Precinct) ," in their original Complaints . See Compl ., ECF No . 1 .
They describe him only as "an employee of the New York Police
Department." Id.

Accordingly , from the face of the original

Complaints , it is apparent that Plaintiffs were , at the very
least , ignorant "in part " of P.O . Coote ' s name for purposes of
invoking CPLR

§

1024 .

13

..

Under CPLR § 1024 , a p l aintiff may substitute a named
party f or a John Doe party nunc pro tune i f the plaintiff meets
two requirements :

(1) "'exercise due d ili gence , prior to the

running of the statute of limitations , to identify the defendant
by name,' " and (2) "describe the John Doe party 'i n such form
as will fairly apprise the party that [he] is the intended
defendant .'" Hogan , 738 F.3d at 518-19 (qu ot in g Bumpus v. N.Y . C.
Transit Auth. , 66 A. D. 3d 26 , 883 N. Y. S.2d 99 , 104

(2009)) . To

satisfy the first requirement - due di li gence - a plaintiff must
"show that he or she made timely efforts to identify the correct
party before the statute of limitations expired ." Strada v . City
of New York , 20 14 WL 3490306 , at *5 (E.D . N. Y. Ju ly 11, 2014)

(quoting Justin v . Orshan , 14 A.D. 3d 492 , 492 - 93 (N.Y . App . Div.
2d Dep ' t 2005))

(quotation marks omitted) . Th ese efforts might

include , inter alia , serving discovery demands on any kn own
parties or seeking disclosures pursuant to a Freedom of
Inf ormat i on Law (" FOIL " ) request . Williams v. United States ,
2010 WL 963474 , at *12 (S . D. N.Y . Feb. 25 , 2010)

(citing Bumpus ,

66 A. D.3d at 33 - 34 , 883 N.Y.S.2d 99) . " Second , the party must
describe the John Doe party in s u ch form as wil l fairly apprise
the party that he is the intended defendant ." Hogan , 738 F.3d at
519 (quoting Bumpus , 66 A . D.3d at 30 , 883 N. Y.S . 2d 99 and citing
cases)

(internal quotat i on marks and a l te r ation omit ted) .

14

The Plaintiffs cannot satisfy

§

1024 because they have

not met the first requirement - due diligence. Federal and New
York courts have held that where there is no indication in the
record that a plaintiff has exercised due diligence prior to the
expiration of the statute of limitations, a plaintiff is not
entitled to make use of the "John Doe" procedure provided in
CPLR

§

1024. Ceara v . Deacon,

68 F. Supp. 3d 402 , 409 (S .D.N. Y.

2014) ; see, e.g., Vasconcellos , 2014 WL 4961441, at *9 (noting
that "[n]othing before the [c]ourt indicate[d] that [the
plaintiff] took any steps to ascertain the [o]fficer
[d]efendants '

identities prior to retaining counsel[ ,]

[t]he declaration submitted by [the plaintiff's] attorney
contain[ed] no indication that he exercised ' due diligence' to
identify the [o]fficer [d]efendants before [the expiration of
the statute of limitations,]" and the plaintiff's attorney "did
not file a

[] demand or take any other steps to identify the

[o]fficer [d]efendants until after the initial conference [held
after the relevant statute of limitations expired], when the
court (not counsel) entered [an] order") ; Williams v. United
States , No . 07-CV-3018 , 2010 WL 963474 , at *13 (S .D.N. Y. Feb.

25 , 2010)

(holding that despite the plaintiff's "limitations,

given his incarceration and prose status," the plaintiff did
not show that "he exercised some due diligence in an attempt to

15

ident ify the [i]ndividual [d]efendants prior to filing the
[c]omplaint[,]" when the plaintiff "provided no information
regarding his pre - filing efforts to ident i fy the [i]ndividual
[d]efendants")

(italics and internal quotation marks omitted)) ;

cf . Lepore v . Town of Greenburgh , 120 A.D. 3d 1202 ,

329 , 332 (20 14 )

992 N.Y.S.2d

(holding that the Supreme Court erred in failing

to grant the defendants ' motion t o dismiss because p l aintiffs
failed t o identify the relevant John Does and serve them prior
to the expiration of the statute of limitations and "failed to
raise a triable issue of fact as to whether they exercised due
diligence in attempting to identify and serve the John Does such
that the applicable l i mitations periods had tolled or were
otherwise inapp l icable").

Though Plaintiffs do not discuss at length their
efforts to uncover the name of the John Doe defendant , from the
little inf ormation provided , "Plaintiff[s] appear[] to ha ve
expended no efforts at all to identify the Individual
Defendants " in the many months between the fi l ing of her
original Compla i nts and the filing of their Amended Complaints .
Williams , 2010 WL 963474 , at *13 . Plaintiffs simply state that

they "did not determine the officer ' s name until months after
the statute of limit ations had r [u]n." Opp 'n, No. 15 Ci v . 9123 ,

16

ECF No. 50 at p. 3. Plaintiffs argue that it took so long to
determine P.O. Coote's identity because the onus was on the City
to "make .

[an] investigation into what happened on said

date, which would almost without a doubt include determining the
officers that were on duty that day in the area and any officers
named in the arrest of Plaintiff." Id. They assert that
determining the identity of the unnamed officer was a task for
the City merely upon service of the "initial filed
Complaint[s]," id., rather than service of any discovery
demands, FOIL requests, contact with the Attorney General's
office, or subpoenas. Cf. Hogan, 738 F.3d at 513, 519 (finding
the due diligence requirement met where pro se plaintiff
"summit[ed] over ten discovery demands and multiple requests
under New York's Freedom of Information Law" and "submitted
multiple discovery requests to the Attorney General's office as
counsel for the named defendants").

In essence, Plaintiffs have explained that they relied
exclus ively on the City to determine the name of the John Doe
police officer, without undertaking any efforts themselves. Such
reliance is misplaced, as the Plaintiffs were required to
"exercise due diligence, prior to the running of the statute of
limitations, to identify the defendant by name." Hogan,

17

738 F.3d

at 518 - 19 (internal quotat i on marks and ci t ations omitted)
(plaintiff met first requirement under § 1024 in that he
"diligently sought to identify the ' John Doe defendants ' by
submitting ' multip l e discovery requests to the Attorney
Genera l' s office'") ; Mabry v. New York City Dept. of
Corrections , No. 05 - CV - 8133

(S . D. N. Y. March 7 , 2008)

(JSR)

(JCF) , 2008 WL 619003 , at *6

(allowing relation - back where

plaintiff ' s first comp l aint was well wi thin statute of
l imitations and she " aggressively sought the identit i es of the
defendants " ).

If Plaintiffs believed , as their opposition briefing
is read to assert , that the Ci ty ' s counsel was stonewal l ing
efforts to identify the John Doe officer , they " could have
timely pursued alternative avenues for obtaining discovery "; for
example , filing a FOIL request or notifying the Attorney
General ' s office or the Court . Barrett , 2017 WL 1102672 , at *6
(citing Temple v . New York Community Hospital , 89 A.D . 3d 926 ,
933 N. Y.S.2d 321 , 323 (2011)

(concluding that " the plaintiff

failed to exercise due dil i gence to discover the i dentity of the
John Doe defendants prior to the expiration of the statute of
limitations[ ,] " in part , because " [t]here [was] no indication in
the record that the plaintiff engaged in any pre - action

18

discovery or Freedom of Information Law .

requests[,]" and

when the responses to "s ome limited discovery demands " were
"less than adequate , the plaintiff failed to promptly seek
further discovery, neglected to submit a properly executed
authorization to the disclosing party, and failed to properly
and promptly seek assistance from the .

. Court")). At no

point did Plaintiffs file a subpoena to attempt to identify P.O.
Coote prior to the c l ose of the statute of limitations period,
see Docket Sheets , Nos. 15 Civ. 9123 and 16 Civ. 226 , nor did

they ever notify this Court that Counsel for the City had
refused to cooperate with her efforts to identify the responding
officer, id. Cf . Hogan, 738 F.3d at 513 , 519 ; Ceara , 68 F. Supp.
3d at 412

(finding the due diligence requirement met at the

motion to dismiss stage where a prose plaintiff's "efforts to
identify [defendants] through the inspector general , his
notification to the Court of these efforts, and his amendment
naming the defendant when the Attorney General disclosed the
full identity pursuant to Order of Service " ) .

Given that Plaintiffs have not shown that they
exercised due diligence to identify P.O. Coote prior to the
expiration of the statute of limitations, especially when
compared to the efforts of other plaintiffs in

19

§

1983 cases , the

Court finds that the requirements of

§

1024 are not met , and

therefore , the First Amended Complaints do not relate back under
Rule 15 (c) (1) (C) or Ru l e 15 (c) (1) (A). All federal law claims
against P.O . Coote relating to the April 28 , 2013 incident are
time barred as of April 28 , 2016 and are dismissed.

B.

Plaintiffs' Claims for Municipal Liability Under
Section 1983 Are Dismissed

Plaintiffs' for municipal liability under Monell are
dismissed as a matter of law because their allegations fail to
support the inference that her claims resulted from official
municipal policy, custom , or practice. Under the standards of
Monell v. Department of Social Services , 436 U. S. 658

(1978), a

municipality can be held liable under Section 1983 if the
deprivation of the plaintiff ' s rights under federal law is
caused by a governmental custom , policy , or usage of the
municipality . Id. at 690-91; see also Connick v.
U. S . 51, 60

(2011)

Thompson,

563

(municipalities can be held liable for

"practices so persistent and widespread as to practically have
the force of law"). Absent such a custom , policy , or usage , a
municipality cannot be held liable on a respondeat superior
basis for the tort of its employee . Coon v . Town of Springfield ,
404 F.3d 683 , 686 -87

(2d Cir . 2005)

20

(citing Monell,

436 U.S.

658 , 694) ; see also Connick , 563 U.S . at 60
U . S . at 691) ; Ed . of Cnty.

Brown , 520 U . S . 397 , 404

(citing Monell , 436

Comm ' rs of Bryan Cnty . , Okla . v .

(1 997)

("[I ] t i s not enough for a§

1983 plaintiff merely to identify conduct p r oper l y attributable
to the munic i pality. The plain t iff must also demonstra t e t ha t,
through its deliberate conduct , the mu nicipality was the ' moving
fo r ce ' beh i nd the in j ury a l leged ." ) .

Thus , i so l a t ed acts o f excess i ve force by non pol i cymaking municipal emp l oyees are genera l ly not sufficient to
demonstrate a municipal custom , po l icy , or usage t h at wou l d
justify municipal liabil i ty . Villante v . Dep ' t . of Corr. , 786
F . 2d 5 1 6 , 519 (2d Cir . 1986)
Tuttle , 471 U . S. 808

(1985)

(citing City of Oklahoma City v .
(Brennan , J ., concu r ring in part and

concurring in the j udgment)) . " On the other hand , such acts
would justify liabil i ty of the municipality if , for example ,
they were done pursuant to municipal pol i cy , or were
sufficiently widespread and pe r sistent to support a f i nding that
they constituted a custom , pol i cy , or usage of which s u pervisory
author i ties must have been aware , or if a mu nic i pa l custom ,
policy , or usage would be inferred from evidence of de l iberate
ind i fference of supervisory officials to such abuses . " Jones v .
Town of E . Haven , 691 F . 3d 72 , 81

21

(2d Ci r . 2012)

(citing Amnesty

Am. v . Town of W. Hartford,

361 F.3d 113, 125-26 (2d Cir.

2004)) .

Plaintiffs' Amended Complaints make no allegations
that can support a Monell claim. Rather than allege any policy,
pattern , or practice of misconduct, or any knowledge by the
municipality of abuses and indifference to them, Plaintiffs
allege only a single, isolated incident: their own . A "single
incident alleged in a complaint , especially if it involved only
actors below the policy-making level, does not suffice to show a
municipal policy ." Ricciuti v. NYC Transit Auth ., 941 F.2d 119,
123 (2d Cir . 1991). To the extent the purported Monell claim is
based on an alleged failure to screen , hire, train, and
supervise its police officers, that claim fails because
Plaintiffs do not "identify a specific deficiency in the city ' s
training program and establish that that deficiency is 'closely
related to [her] ultimate injury, such that it 'actually caused'
[her] constitutional deprivation." Green v . City of New York ,
465 F.3d 65 , 8 1 (2d Cir. 2006)

(quoting Amnesty Am ., 361 F. 3d at

129) . Such proof is necessary to ensure that "'the [police]
of ficer's shortcomings .

. resulted from .

a faulty

training program ' rather than from the negligent administration
of a sound program." Amnesty Am ., 361 F . 3d at 129 (internal

22

ci t ation omitted) . Here , Pl aint i ffs provide only vague and
conclusory allegat i ons of " officia ll y promu l gated policy, "
" custom and practice ," and "failure to train, " FAC at pp. 8 - 18 ,
which are insufficient to support a Monell claim.

In sum , " apart from a detai l ed recounting of [ their]
own experiences ,

[Plaintiffs ' ] complaint[s] contain [ ] only

' general and conclusory a l legation [ s] that there was .

. a

policy ' to deny prisoners adequate medical care . " Schnauder v .
Gibens , 679 F . App ' x 8 , 10 (2d Cir . 2017)

(quoting Littlejohn v .

City of New York , 795 F . 3d 297 , 314-15 (2d Cir . 2015)) . "Such

allegations are insufficient to sustain or ' raise a reasonable
expectation that discovery wi l l reveal evidence ' " in support of
Cotto ' s claim . Schnauder , 679 F . App ' x at 10 (quoting Twombly ,
550 U.S . at 556) .

C.

Plaintiffs' State Law Claims are Dismissed

Plaintiffs '

state law claims of malicious prosecution ,

intentional or reckless i nfliction of emotiona l distress ,
negligent infliction of emotional d i stress, and assault and
battery liabi li ty aga i nst the City under respondeat superior ,
see FAC at pp. 20 - 22 , are barred for fa il ure to comply with New

York ' s General Municipal Law§§ 50-e a n d 50-i. Generally, " in a
23

federal court , state notice-of - claim statutes apply to state-law
claims ." Matthews v . City of New York , No. 15-CV-2311 (ALC) ,
2016 WL 5793414 , at *10 (S . D.N . Y. Sept. 30, 2016)

(quoting Hazan

v . City of New York , No . 98 - CV -1 716, 1999 WL 493352, at *6

(S.D . N. Y. July 12, 1999)). "Under New York law, a notice of
claim is a condition precedent to bringing certain tort actions
against a municipality such as the City for damages sustained by
reason of the negligence or wrongful act of the municipality or
its officers , agents , or employees ." Ferlito v . Cnty . Of
Suffolk, No . 06-5708

(DRH) (AKT), 2007 WL 4180670 , at *3

(E .D. N. Y. Nov. 19, 2007)

(citing Hardy v . New York City Health &

Hosp . Corp ., 164 F . 3d 789 , 793 (2d Cir. 1999)) .

Specifically , General Municipal Law §§ 50-e and 50-i
specifically require that a plaintiff asserting state tort law
claims against a municipal entity or its employees acting in the
scope of employment:

(1) file a Notice of Claim within ninety

days after the incident giving rise to the claim , and (2)
commence the action within a year and ninety days from the date
on which the cause of action accrues. See N.Y . Gen . Mun. Law§§
50-e and 50 - i . Failure to comply with these requirements
requires dismissal for failure to state a cause of action.

24

Here , although Plaintiffs filed their Notice of Claim
within the required time period, they did not commence her
action within the one year and ninety days from the date their
causes of action accrued. See N.Y. Gen. Mun. Law§ 50-i. Indeed,
Cotto initially commenced this action on November 19 , 2015 , more
than two years and 205 days after the April 28 , 2013 incident
upon which her claims are based, and Arroyo commenced his action
even later. Moreover , Plaintiffs' malicious prosecution c laims
against P.O. Coote fail because, in addition to not serving P.O.
Coote with service of process, Plaintiffs failed to commence
their state law malicious prosecution claim within the one year
and ninety days from the date their state law malicious
prosecution causes of action accrued, which was on or before
March 12 , 2015 . 3 See N. Y. Gen. Mun . Law§ 50-i. Accordingly , all
of Pla intiffs' state law causes of action are dismissed wi th
prejudice.

In addition, Plaintiffs have conceded, both in
briefing and in open court, that all state claims are barred.
See Opp'n, No. 15 Civ . 9123 , ECF No. 50 at p. 5 .

The City has stated that upon information and belief, the
criminal case was dismissed on December 12, 2013 .
25

3

.

.

V.

Conclusion

The First Amended Comp laints filed by Plaintiffs Cotto
and Arroyo are dismissed with prejudice .

It is so orde red.

New York, NY
August l( , 2017

U . S.D.J.

26